A History of Islamic Legal Theories: An Introduction to the Sunni Usul Al-Fiqh by Wael B.HallaqReview by: Delfina Serrano RuanoJournal of Law and Religion, Vol. 15, No. 1/2 (2000 - 2001), pp. 379-383Published by: Journal of Law and Religion, Inc.Stable URL: http://www.jstor.org/stable/1051528 .

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A HISTORY OF ISLAMIC LEGAL THEORIES. AN INTRODUCTION TO THE SUNNI

USUL AL-FIQH. By Wael B. Hallaq. Cambridge: Cambridge University

Press 1997. Pp. ix, 294. Price not available. ISBN: 0-521-59027-2. Paper. ISBN: 0-521-59986-5.

The term fiqh, the science of the sacred law of Islam (Shari'ah), designates a corpus of ethical and legal norms derived from four sources: the Qur'an or the word of God revealed to his Prophet; the sunnah or normative practice of the Prophet, transmitted in the form of reports or traditions (hadith); the consensus of the community offiqh experts (ijma'); and the analogical reasoning by the inference of

analogies according to a pre-defined method of reasoning (qiyas). The science offiqh is divided into the study of its fundamentals or

sources (usul al-fiqh), and its branches (furu' al-fiqh) or "substantive law." The discipline of usul al-fiqh, commonly referred to as "legal theory" or "legal methodology," aimed at establishing the principles to regulate the interpretation of the texts of the law. Wael Hallaq's contribution is an attempt to describe and analyze the processes of elaboration and growth of legal theories from classical to contemporary Sunni Islam. Hallaq's book is a handy compendium of the history of Islamic legal theories which he divides into four periods: pre-classical (eighth to tenth centuries), classical (tenth to twelfth), post-classical (thirteenth to first half of the fourteenth century) and modem and contemporary (second half of the nineteenth to the twentieth century) Islam. The core of the book (chapters 1-14) is dedicated to the classical theory of Islamic law which is essential to understand later

developments. The "formative period" of the science of usul al-fiqh (1-35)' was

initiated by the "Epistle" (Risala) of al-Shafi'i (d. 820), the founder of the Shafi'ite school, one of the four Sunni schools of Islamic law. Al- Shafi'i's work constitutes the first attempt to produce a theory which describe and prescribe the methods to formulate the law. Among his main contributions are the assigning of a similar epistemological value to Qur'an and hadith, the distinction between the consensus of the majority and that of the fiqh specialists, and the introduction of a new kind of analogical reasoning based in the ratio legis. Likewise, Shafi'i

1. All citations in the text refer to the book under review.

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embodies the synthesis between the "rationalist" (ahl al-ra'y, who derive rules from individual reasoning) and the traditionalist (ahl al- hadith, who reject racy and defend strict observance of hadith).

From the tenth to the twelfth century, a process of systemization of the legal theory took place in which the disciples of Ibn Suraj (d. 918) participated. Drawing from recent studies, Hallaq points to the lack of a chronological continuity between the period of formation and that of systemization. (30-35)

The ultimate elaboration of the classical methodology of Islamic law established its hermeneutical principles, the legal epistemology of its sources, and the rules governing consensus as components of the required knowledge to qualify as a legal interpreter (mujtahid). (36-81 and 117-124) On the other hand, the inference of legal norms was restricted to specified forms of legal reasoning. (82-124) Qur'an, hadith, ijma' and qiyas came to constitute "constants" in the legal theory whose overall validity was not subject to discussion. Only the "variables"-introduced by the assimilation of theological and logical elements-in the understanding, interpretation and reinterpretation of a source were open to debate. (125-161)

With respect to the constants, a science of the legal language was created to deduce the epistemological value of the texts, by virtue of the force or weakness of their transmission and the clarity or ambiguity of their meaning. I would have liked some reference to the role of grammarians and lexicographers in the development of this theory. Regulations were made to put the hadith to an analysis of the conditions of its transmission. The abrogation theory allowed jurists to solve the problem of inconsistent or contradictory texts. In order to classify all legal actions, five legal categories (ahkam) were defined: obligatory (wajib), recommended (mandub), permitted (mubah), disapproved (makruh) and prohibited (haram). The consensus of the community, embodied by its more prominent jurists, was granted, under limited conditions, (75-81) the status of certain knowledge. The most important kind of legal reasoning was represented by qiyas or analogy, (82-107) a term which also includes both the "assilogistic" a fortiori and the silogistic reductio ad absurdum arguments. Though contested by some jurists, three other forms of legal reasoning were admitted: istihsan, preference of the adoption of an argument by means of which a piece of textual evidence produces a conclusion different to that yielded by analogy; istislah, which takes the public interest into account; and istihbab, the principle of presumption that a legal state of affairs continues to be valid until there is reason to believe the contrary.

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Regarding the variables, different versions of the subsidiary elements of the sources of Islamic law were evident, for example, in the contents and arrangement of the subject matter in methodological treatises. There was similar diversity in the argumentation to have istihsan and istislah accepted. The influence of Greek logic and Islamic theology led to the theory of legal causation, to the notion of induction, and to the development of the art of dialectics to reduce juristic disagreement. Internal growth in the substantive law produced a literary genre-that of legal responsae (fatwas)-by means of which the introduction of changes in the legal practice was discussed and thus legitimated. As defined by Hallaq, fatwas are "a system of accommodation" to the social and economic reality. On the other hand, from the twelfth century onwards the existence of independent interpreters of the law (mujtahidun) was put into question.

In the fourteenth century the Andalusian jurist al-Shatibi elaborated his theory on the objectives of the law (maqasid al Shari 'ah). (162-204) He represents a new stage in the history of sunni legal theory. In his book, Shatibi's Philosophy of Islamic Law,2 Masud had explained the need for this original legal methodology mainly as a response to new social, economic and ideological conditions issued in Shatibi's Granada (Spain), as a consequence of the precarious balance between the Muslim Nasrid sultans and their increasingly pressing Christian neighbors. Among those factors, Hallaq insists on the role played by Sufism. He considers Shatibi's endeavor essentially as a reaction against the lenient attitude of Granadan jurists and the radical attitude held by Sufis which required excessive and unnecessary hardship in fulfillment of the law.

Using the traditional subjects of the classical legal theory, Shatibi granted the Qur'an a unique epistemological value, and reviewed the theory of abrogation. According to his system, the purpose of the Shari'ah, i.e. of the Lawgiver, is the protection and the promotion of three legal categories: necessities (daruriyyat), including the universals of life, property, health, mind and progeny; needs (hajiyyat) which limit the rigid demands of the daruriyyat; and tahsiniyyat or aspects of the law which improve the general character of the Shari 'ah. For a legal act to be valid, the intention of the legal authority and that of the divine Lawgiver must be in harmony.

Notwithstanding its soundness and originality, Shatibi's legal theory did not exert any evident influence in the subsequent generations

2. Muhammad Masud, Shatibi's Philosophy of Islamic Law (Islamabad: Kuala Lumpur/Islamic Book Trust 1995.)

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of jurists. His thought, however, has been claimed by some modem reformists. The search for a new legal methodology started in the second half of the nineteenth century. (207-254) Leaving aside the secular and the traditional groups, Hallaq arranges the dominant movements into two main streams. Both share the most general trends of Muhammad Abduh's thought and aim at reformulating the classical methodology in order to obtain a system which responds to the challenges of moder life while keeping the fundamental Islamic religious values. Hallaq calls the first group of reformists "religious utilitarianists." They include M. Abduh (d. 1905), R. Rida (d. 1905), A.W. Khallaf (d. 1956), A. al-Fasi (d. 1973) and H. Turabi. They redefined in terms of public benefit (maslaha), some principles of the classical legal theory like qiyas, ijma' istihsan and istihbab. Hallaq calls the second group of reformists "religious liberalists." They include M.S. Ashmawi, F. Rahman (d. 1988), H. Kamali and M. Sahur. They rejected the classical science of the usul al-fiqh and tried to create a new one from a rationalist approach. After an analysis of the consistency of all these theories, Hallaq observes that their solidity stands in proportional opposition with the degree of their actual implementation. In this sense, only the utilitarianist trend has found some echo in the legal systems of modem Islamic countries.

The transference of the elaboration of the law to modem jurists and the emergence of codification stand among the fundamental changes that emerged in contemporary Islamic discourse. (255-262)

Hallaq's effort of synthesizing, after the examination of a large amount of sources, (268-275) is praiseworthy. As useful and necessary as a synthesis like Hallaq's is, it runs the risk of presenting the isolated opinion of a given jurist as a general quality. But Hallaq seems to have successfully overcome his difficulty. His study is not limited to synchronic and diachronic theoretical questions; he also pays attention to the relationship between doctrine and practice from the classical to the modem period. His view about the chronology of the prophetic tradition is brought into line with David Powers, Harald Motzki and Uri Rubin's. They all challenge the theories of Ignaz Goldziher, Schacht and Gautier H.A. Juynbolls, according to which hadith reports were a late artificial elaboration gradually projected back to the Prophet's era. (21) Likewise, Hallaq looks at commentaries on earlier legal sources from a new perspective. He not only points to their originality but also underlines their reinterpretative role by means of which legal theory assimilated social and economic change. (146-149)

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One notices a tendency to assimilate Malikite court practice ('amal) to Moroccan 'amal. Besides the 'amal of Medina, however, a clear distinction is required in Malikite court practice among at least two chronological stages that respond to different definitions. As regards the penetration of Greek logic into Islamic legal thought, Hallaq holds the Shafi'ite al-Gazali as the first agent of this assimilation. On the other hand, he acknowledges that the first steps in that sense were actually given by the Zahirite Ibn Hazm (d. 1062). But Hallaq deprives him of the credit given the Zahirite's rejection of qiyas. Not all scholars, however, consider Ibn Hazm out of the limits of sunnah. A.M. Turki situates him within the bounds of orthodoxy. In fact, and paradoxically, Ibn Hazm's outstanding defense of the sunnah and his undeniable influence in the development of the science of sunni usul al-fiqh make it very difficult, if not contradictory, to undertake a history of Islamic legal theories without him.

Reviewed by Delfina Serrano Ruano t

t Albert-Ludwigs-Universitit Freiburg, Orientalisches Seminar, 79085 Freiburg, Germany.

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